The High Court dismissed the wife's appeal challenging the decree of divorce granted by the Family Court on grounds of adultery and cruelty. The Court held that the wife's failure to rebut the testimony of the husband and witnesses regarding illicit relationships, along with her desertion, substantiated the findings of adultery and cruelty.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C.M.A.No.2172 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :10.12.2024
CORAM
THE HONOURABLE MRS. JUSTICE J.NISHA BANU and THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
C.M.A.No.2172 of 2018
Vimala D/o Late Kasu
... Appellant
Vs.
K.M.Shanmugam, S/o Late Murugesan ... Respondent
Prayer: This Civil Miscellaneous Appeal is filed under Section 19 of the Family Courts Act, 1984 against the judgment and decree of the Additional Family Court, Coimbatore made in H.M.O.P.No.1186 of 2012 dated 16.03.2016.
For Appellant : Mr.M.R.Thangavel For Respondent : Mr.K.Vasanthanaygam
JUDGMENT
(Judgment of the Court was delivered by J. Nisha Banu, J)
This Civil Miscellaneous Appeal has been filed by the
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appellant/wife against the judgment and decree of the Additional Family Court, Coimbatore made in H.M.O.P.No.1186 of 2012 dated 16.03.2016, in which, the petition filed by the respondent/husband seeking divorce was granted by the Family Court.
03.12.1995. The marriage expenses were borne by the
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petitioner/husband. Subsequently, a girl baby was born to them on 02.10.1998 viz., Kumari Iswarya @ Bhavani.
ii) The petitioner and the respondent were leading a smooth and happy married life with their three daughters. Whileso, during the year 2000, one Mohan, the brother of the respondent sister's husband Duraisamy was said have been visiting the petitioner's home and the petitioner came to understand that the same ended with an illegal intimacy between the respondent and the said Mohan. Initially, the petitioner did not suspect the said relationship. During the year 2003, when the petitioner's cousin one Easwaran, who was working as a police constable happened to visit his home, found the respondent and the said Mohan in a compromising situation. He warned the respondent. The respondent expressed her apology and requested him not to reveal to anybody, accordingly, he did not reveal anything to the petitioner for the welfare of the petitioner's family. However, the said relationship stealthily continued which was noticed by the petitioner's sister who also warned the respondent. She also did not suppress anything to the petitioner in the interest of the family.
iii) During November, 2003, the elder daughter Devi Priya said to
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have noticed the illicit relationship between the respondent and the said Mohan and she also did not disclose the same to the petitioner. But on 06.12.2003, when the petitioner came home, his 2 daughters revealed the details of their witnessing the illegal intimacy of the respondent with the said Mohan. The petitioner was not in a position to belief and tolerate the same. Immediately, the respondent's sister and respondent's parents were informed about the same. Before the arrival of the respondent's parents, the respondent fled from the petitioner's house by taking all her belongings and reached her parent's house. After two months, she took her daughter who was with the petitioner without his knowledge and remained in her parents' house.
iv) She also filed a maintenance petition before the Judicial Magistrate Court, Alathur in M.C.No12/2004. During the pendency of the said case, the parties were compromised and both started to live together with three children.
v) During the year 2009, the petitioner once again felt some kind of difference in the respondent's activities. However, he consoled himself by saying that it may not be true. The eldest daughter was staying in hostel and studying BBM in a college and she used to come home
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during weekends. During the year 2011, she along with the third daughter Bhavani have noticed the respondent having illicit intimacy with one of the petitioner's relative namely Karthik who was residing nearby.
vi) When the petitioner came to know about the same, he was shocked and felt ashamed in front of his relatives, neighbours and his daughters. Once again, the respondent left the matrimonial home. Since the petitioner could not live with the respondent any more, he filed a petition for divorce and the same was granted by the Family Court. Against which, the wife has filed the present appeal.
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would further state that the alleged adulterers were not made as party respondent in the original petition or had been called as a witness to substantiate the same. The appellant had categorically denied the allegations of adultery and not even a single suggestion was put to her in the course of cross examination by the respondent.
in accepting the evidence of PW2 who happen to be an eye witness to the alleged adultery in 2003 and had divulged the same to the respondent after nine years in 2012. Further, P.W.2 is not certain about the date, time and place of such alleged act of adultery. The conduct of P.W.2 in making an allegation of adultery is highly artificial who happens to be a close relative of the respondent and he is not a credible witness and his non-disclosure of the act of alleged adultery for nine longs years is unacceptable. He would further state that the allegation of adultery was made only for the purpose of the original petition and does not inspire the confidence of the Court. The appellant had lived with the respondent for seventeen years and only due to suspicion and due to difference in age between them, the respondent had sought for divorce. The appellant
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had sought for maintenance from the respondent before the learned Judicial Magistrate and she had withdrew the same on two occasions on the assurance of the respondent. The grant of divorce by the Family
Court is unreasonable and need to be interfered by this Court.
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having illicit relationship from the year 2000. Initially, the respondent did not suspect the relationship between the appellant and one Mohan, who is the brother of her sister's husband. The respondent's cousin one Easwaran, a police constable happened to see the respondent and the said Mohan in a compromising position and he also warned her but he did not reveal the same to the respondent for the welfare of the respondent's family. Even the sister of the respondent also noticed the same and warned the appellant. She also did not say anything to the respondent in the interest of the family. Only the 2 daughters of the respondent revealed that they witnessed the illegal intimacy of the appellant with the said Mohan. The appellant left the matrimonial and filed a petition for maintenance and both the parties were compromised. Thereafter, they lived together with their daughters.
https://www.mhc.tn.gov.in/judis Page 8/15
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his daughters. The appellant left the matrimonial home. Since the respondent could not live with the appellant any more, he filed a petition for divorce. Only after considering the oral and documentary evidence, the Family Court has granted the decree of divorce and the same need not
be interfered with.
for the respondent and perused the materials available on record.
living happily along with her family.
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due to dispute between the appellant and the respondent. She also filed a petition for maintenance and after compromise, they both were living together with the children.
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with her any longer.
suspicion on the appellant and it was only an out pour of age difference of 20 years between them and that he beat her and chased her out of the matrimonial home in May, 2012. However, in Ex.P7 reply notice of the appellant to the lawyer's notice for divorce sent by respondent, she did not state that the respondent beat her and chased her out of the matrimonial home instead she had stated that since she could not tolerate the torture of the respondent, she left the matrimonial home. Therefore, it is proved that the appellant was not beaten and chased out of matrimonial home in May, 2012 but she left the matrimonial home on her own accord.
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minors, the trial Court has given a finding that their examination in this regard, would affect their mental condition and that the non-examination of these witness will not affect the case of the respondent.
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judgment and decree dated 16.03.2016 passed by the learned Additional Family Court, Coinmbatore made in HMOP.No.1186 of 2012, is confirmed. No costs.
(J.N.B, J.) (R.S.V., J.) 10.12.2024
vsi
To
The Additional Family Court, Coimbatore.
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J. NISHA BANU, J. and R. SAKTHIVEL, J.
vsi
C.M.A.No.2172 of 2018
10.12.2024
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3 issues framed by the court
Whether the evidence on record substantiates the allegation of adultery against the wife.
Whether the wife's conduct amounts to mental cruelty warranting divorce.
Whether the Family Court's findings on evidence are sustainable.
1 provisions across 1 enactments
Vimala D/o Late Kasu
K.M.Shanmugam, S/o Late Murugesan
J. Nisha Banu
R. Sakthivel
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
